Standing Committee B

[Mr. Eric Illsley in the Chair]

Criminal Justice Bill

Motion made, and Question proposed, 
That the Order of the Committee [17 December] be further amended, in paragraph (6), by leaving out '11.25 am' and inserting '5.15 pm'.—[Hilary Benn.]

John Heppell: I beg to move, as an amendment to that amendment, to leave out ''5.15'' and insert ''4.55''.
 We may have a slight problem, in that we are likely to have votes from 5 pm onwards, and if the votes continue the Committee would have to come back at 7 pm to conclude its business. I therefore propose that we conclude at 4.55 pm.

Dominic Grieve: I am grateful to the hon. Gentleman for moving the amendment, which I certainly support. However, I hope that we might take a look during the course of today at what we have to consider, including the remaining clauses that need to be completed by 4.55 pm. We are not allowing ourselves enough time to consider the forthcoming clauses, yet many of the clauses that need to be considered between Thursday and the following week may prove to be non-controversial. I wonder whether we have got the knives right, and I hope that we may be able to revisit that question at lunchtime.

David Heath: There may well be some substance in what the hon. Gentleman is saying. It would be a shame if we were to curtail debate on something important in order to extend debate on clauses that may be less controversial. There may be a case for revising the programme yet again, in order to ensure that we give ourselves enough space to do what is needed.

Humfrey Malins: In my view, although clauses 204 to 264 currently have a whole week, we do not need that much time. However, today's business up to clause 203 needs considerably more time. Opposition Members would appreciate it if that could be taken into account. I note particularly that we have no difficulty with the knife on 13 February; it is just a question of the spread of business between now and then.

David Cameron: I back what my hon. Friend said. I note that we have to get through something like 70 clauses, including some new clauses that I have tabled that are close to my heart. I hope that the Government will be flexible. If we do not get through all today's business—and if we have behaved ourselves by speaking briefly and to the point, and not wasting the Committee's time—I hope that the Government will look kindly at changing the timing of the knife to allow us to discuss the Bill as we are meant to do.

Mark Francois: Having heard the debate so far on the matter, I suspect that before too long there will be discussions through the usual channels to find some way of resolving the dilemma that we now face.

John Heppell: I am happy to go along with the wishes of hon. Members. Through the usual channels, we shall try to work out a new programme. I am sorry to inconvenience you, Mr. Illsley, but it seems as if that would be helpful to the Committee.
 Amendment agreed to. 
 Main Question put and agreed to. 
 Resolved, 
That the Order of the Committee [17 December] be further amended, in paragraph (6), by leaving out '11.25 am' and inserting '4.55 pm'.

Clause 130 - Meaning of ''community sentence'' etc.

Question proposed [30 January], That the clause stand part of the Bill. 
 Question again proposed.

David Heath: Before we adjourned on Thursday, the hon. Member for Woking (Mr. Malins) asked some interesting and pertinent questions. I want to make two brief points about the clause. The first is simply an observation. Those of us who believe that community sentencing has a valuable role to play and has clear advantages in relation to some offenders and some forms of reoffending would be better served if community sentences were more visible in the community. If we are to get public support for community sentencing, the concept must be sold much more effectively, because it is seen as a slap on the wrist that means nothing. People who are carrying out community sentences are virtually invisible to the general public. The system needs to address that problem. The more people are aware that a community sentence is a real sentence, which has a real effect on a person and is not a soft option, the more they will accept community sentences as a genuine part of the sentencing programme.
 My second point touches on something else said by the hon. Member for Woking. Subsection (1)(a) includes a cross-reference to a community order as defined by clause 160. I should be interested to hear the Minister's answers on that. I may be prefacing a debate that we will have on clause 160, but it is also useful to explore the issue now. There is one risk involved in defining a single community order and a palette of restrictions that can be imposed on the court. Courts will feel increasingly constrained to pile on restriction after restriction, and multiple restrictions on offenders would have the perverse effect of making it far more likely that they would default on the sentence and, therefore, far more likely that a custodial sentence would be the result. That cannot be the intention. I wonder whether the Bill includes sufficient safeguards. 
 Perhaps the Minister will explain how sanction creep by the courts could be avoided. That has been identified as a potential danger by others outside the 
 House. The legislation must be drafted properly so that what is essentially a good part of the Bill does not end up having the perverse effect of increasing custodial sentences for relatively minor offences. We need to strike a balance.

Simon Hughes: I thought it would be helpful to bring to the Committee's attention two parliamentary answers about community penalties given to me by the Minister on Thursday. Written answers Nos. 75 and 76 relate to the activity of prisoners and reconviction rates after different forms of sentence. I shall read the questions and answers and ask for the Minister's response. I asked
''what proportion of prisoners released in (a) 1997, (b) 1998 and (c) 1999 were reconvicted within two years; and what assessment is of reconviction rates for prisoners released in (i) 2000, (ii) 2001 and (iii) 2002.''
 The answer, supplied last Thursday, was: 
''The two-year 'un-adjusted' reconviction rate for prisoners discharged from custody in 1997 was 58 per cent. The provisional figure for 1998 was also 58 per cent. These rates are published in 'Prison Statistics—England and Wales 2000'.
Reconviction rates for offenders discharged from custody in the first quarter of 1999 have also been calculated according to the requirements of the Government's Public Service Agreement . . . 10 target. These are adjusted to take out convictions for offences committed prior to discharge, giving a reconviction rate of 55.3 per cent. The equivalent figures for the first quarter of 1997 and 1998 are 56.8 per cent. and 55.7 per cent. respectively.
Reconviction rates for more recent periods are not yet available.''
 The relevant reconviction rate was therefore 58 per cent. in 1997 and 1998 and 55.3 per cent. for the first quarter of 1999, which is the latest period for which we have figures. 
 I asked a parallel question on the same day, and I received written answer No. 76. My question was: 
''To ask the Secretary of State for the Home Department what proportion of offenders completing community sentences in (a) 1997, (b) 1998 and (c) 1999 were reconvicted within two years; and what his assessment is of reconviction rates for offenders completing programmes in (i) 2000, (ii) 2001 and (iii) 2002.''
 The answer was: 
''Reconviction rates for offenders commencing community penalties in the first quarter of 1997 have been calculated according to the requirements of the Government's Public Service Agreement . . . 10 target. These are adjusted to take out convictions for offences committed prior to commencement of the penalty and convictions for breach of the penalty where no further offence had been committed.
This gives a reconviction rate for the first quarter of 1997 of 45.7 per cent. The equivalent figure for the first quarters of 1998 and 1999 are 46.0 per cent. and 44.3 per cent. respectively.
Two-year reconviction rates are not available for offenders completing programmes in 2000, 2001 or 2002.''—[Official Report, 30 January 2003; Vol. 398, c. 1049–1050W.]
 To summarise, the relevant reconviction rate was 45.7 per cent for the first quarter of 1997, which was the first year in relation to which I asked about people who had been in custody. For subsequent first quarters, the rates were 46 and 44.3 per cent. 
 I have two last points, which are obvious. There is not an exact parallel between those who receive a custodial penalty and those who do not, and I am not 
 trying to make that case. However, Home Office statisticians and those who know a lot about these calculations take such considerations into account when making comparisons. Such comparisons are important and will become increasingly so if the present trend continues. The calculations for the most recent years for which figures are available suggest that the reconviction rate for those who went to prison was between 55 and 60 per cent. In the same period, the reconviction rate for those who did not go to prison but received a community penalty was between 40 and 50 per cent. It would be helpful to have the Minister's comments on that. 
 There seems to be a strong case for good community penalties and for increasing investment in them, as well as for many of the plans that the Government set out in the White Paper following the Halliday report. We should try to avoid custody wherever possible and to have good community penalties as an alternative.

Hilary Benn: Let me take the opportunity, prompted by our discussion on the programme amendment, to thank my hon. Friend the Member for Nottingham, East (Mr. Heppell) for the skilful way in which he has assisted the Committee in conducting its business and for his constant willingness to listen to fair points about the programme motion. That is appreciated by hon. Members from all parties.
 When we finished on Thursday, the hon. Member for Woking asked me a list of questions. He kindly prefaced them by saying that he would be happy for me to respond at a later date. I shall be delighted to do so in writing. 
 I concur completely with the comments of the hon. Member for Somerton and Frome (Mr. Heath) about the way in which community sentences are perceived. That is best summed up by the phrase ''got off with probation''. How often has one heard that phrase fall from people's lips? If one talks to some of the people who are experiencing rigorous community penalties, they will not argue that they have ''got off with'' anything. It is extremely important—not least for the success of many of the Bill's community penalty provisions—that we get away from community penalties being an alternative to the default setting, which is custody. We must lay down clearly, as the Bill does in its principles, where custody is appropriate and where community penalties are appropriate. We must use community penalties effectively. 
 The hon. Gentleman raises an interesting point about condition creep. Clause 160(6) requires the court, where two or more of those many requirements under subsection (1) are imposed, to consider the compatibility of the two. The other way that it will need to be dealt with is through training. The aim is to enable the courts to flexibly design a sentence that meets the offender's needs. However, I agree with the hon. Gentleman that it would not be sensible if there was to be the condition creep that he describes. That is something of which we shall need to be conscious.

David Heath: The Minister is responding positively to my point. I am grateful to him for that. He is right that training will play a role. Can he assure the Committee that appropriate guidance will be given on how to apply the palette of requirements in clause 160(1)? That is crucial to the entire operation.

Hilary Benn: I gladly give that assurance, not least because the Sentencing Guidelines Council, in offering advice on the operation of sentences, will be required to do that.
 I say to the hon. Member for Southwark, North and Bermondsey (Simon Hughes) that the figures that he reported to the Committee are interesting. He partly answered his question when he acknowledged that there is not an exact parallel because different offenders are being dealt with by the different disposals. A true comparison could be made only if one took a group of offenders who had committed offences of the same seriousness and who had the same background. Custodial sentences could be imposed on one lot and community sentences on the other. We would have a proper control that would enable us to assess the different effect of the different sentences. However, we must continue to answer questions such as those posed by the hon. Gentleman if we are to better understand the impact that different sentences have on different offenders.

Graham Allen: I agree with the hon. Member for Somerton and Frome. I had intended to speak to the clause. However, I shall not do so, as we need to move on quickly. There is a severe credibility problem in the community about the perception of community sentences. I know that the Minister wishes to deal with that.
 I have a specific point to make, not least as we approach clause 160, which specifies some of the community sentences. I do not wish to do away with health and safety legislation, but several people have told me that it often inhibits the type of sentence that people wish to impose on an offender because there are onerous health and safety obligations. I should be grateful if the Minister would respond to that point in writing.

Hilary Benn: I will gladly do so.
 Question put and agreed to. 
 Clause 130 ordered to stand part of the Bill.

Clause 131 - Restrictions on imposing community sentences

Humfrey Malins: I beg to move amendment No. 606, in
clause 131, page 75, line 24, after first 'offence', insert 
 'and the circumstances of the offender'.

Eric Illsley: With this it will be convenient to discuss the following amendments:
 No. 607, in 
clause 131, page 75, line 33, after first 'offence', insert 
 'and the circumstances of the offender'.
 No. 616, in 
clause 140, page 78, line 20, after 'offence', insert 'and the offender'.

Humfrey Malins: My view of the clause is that when a community sentence is passed, the court will have to take into account the seriousness of the offence, but it should in every case specifically take the offender's circumstances into account. In practice, I suppose that one of the most popular community orders is a community punishment order, formerly known as a community service order, by which a court imposes on a defendant a requirement to perform, typically, 140 hours of unpaid work for the benefit of the community.
 In reaching its decision the court has regard, of course, to the seriousness of the offence. However, a discussion often follows about whether the order is appropriate to the particular circumstances of the defendant. For example, some defendants are in work and some are not. Some work shifts; others do not. Some have obligations at certain times of the week—such as Friday prayers for a Muslim, or sporting activities on a Sunday for some people. Careful consideration of the circumstances of the offender is essential before a community service order is made. 
 The Minister may tell me that that consideration is fully catered for in subsection (2)(a), but I want to stress my view that there is no harm in setting out in statute that the offender's circumstances should be taken into account before a community service or similar order is passed, so that the offender will be able to cope with the order and comply with it properly, despite his or her domestic circumstances. I can see no harm in adding the words 
''and the circumstances of the offender''
 and if the Minister also thinks that there is no harm in adding them, I hope that he will accept the amendment.

Hilary Benn: The hon. Gentleman, who raises an important point, anticipated my response correctly. There is certainly no harm in making the point in the statute, which is why the Bill does precisely that in subsection (2)(a), under which
''the particular requirement or requirements forming part of the community order must be such as, in the opinion of the court, is, or taken together are, the most suitable for the offender''.
 That provides the opportunity to deal with precisely those matters that the hon. Gentleman raised. He mentioned religious beliefs, and clause 197, headed ''Requirement to avoid conflict with religious beliefs, etc'', specifically covers that point. 
 As to subsection (2)(b), it is important that restrictions on liberty imposed by the order should bear a relationship to the seriousness of the offence, which would include the effect on the victim. For example, an exclusion requirement, under which the defendant would have to stay away from the victim, should be governed by an assessment of the nature of the offence and its impact on the victim—but not really by the offender's personal circumstances.

Humfrey Malins: The Minister has been very helpful. This short debate has reinforced the point that the circumstances of the offender are a relevant factor. I am grateful to the Minister for his comments and I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 131 ordered to stand part of the Bill.

Clause 132 - Passing of community sentence on offender remanded in custody

Dominic Grieve: I beg to move amendment No. 672, in
clause 132, page 75, line 38, leave out 'may' and insert 'must'.
 The clause deals with the passing of a community sentence on an offender who has been remanded in custody. The ordinary rule in a case of custodial sentence imposed after a person has been on remand is that the period on remand must be taken into account in determining the sentence. However, in this case there is a different problem. To what extent should the period spent on remand be taken into account in determining the nature of the community sentence passed? Two contradictory forces are at work: the desire that the community sentence should be effective, and therefore of sufficient duration and severity to deal with the circumstances of the offender, and the concern that if the offender has been on remand for a long time, it will be unfair for him to serve a form of double sentence—several months on remand followed by an onerous community sentence. The clause uses the words that, where there has been a remand in custody, 
''the court may have regard to any period for which the offender has been remanded in custody''
 in deciding what the community sentence should be. The amendment proposes the substitution of ''must'' for ''may''. 
 ''Must'' imposes a mandatory requirement on the court to consider the period in custody. I hope that that would not fetter the court's discretion too much with regard to the form of community sentence that it imposed. My concern about leaving the word ''may'' is that periods on remand might be disregarded when community sentences follow. If that happens, a sense of unfairness will creep in and people will make comparisons. They will point out that the worst thing that can happen to a defendant is to spend a long time on remand and then get a whacking community sentence on top. There is an issue to be addressed; does the Minister think that the requirement imposed on the court by the word ''must'' would fetter it? I do not think that it would, but it would ensure that the court had to explain properly the relationship between the sentence and the period that the offender might have spent on remand.

David Heath: My hon. Friend the Member for Southwark, North and Bermondsey and I have subscribed to the amendment. The perennial debate about ''must'' and ''may'' is a staple of Committee work. However, in this case it has a considerable consequence. There is no argument for the court to have discretion in relation to the period on remand; it should not be taken into account. I hope that the Minister will accept that the alternative formulation is the better one.

Hilary Benn: The clause is drafted as it is because, having weighed up the arguments that the hon.
 Member for Beaconsfield (Mr. Grieve) advanced, we came to the view that ''may'' was better than ''must'' for the two reasons that he mentioned. First, there is no readily apparent equivalence between a period on remand and a community sentence. In the case of a custodial sentence, days can be taken into account in calculating the length of a prison sentence; it is a one for one relationship. However, it is not clear how a sentencer can balance a period spent on remand with the nature and construction of a community sentence. It may be slightly clearer in some cases than others, but it may not.
 That brings me to the second point, acknowledged by the hon. Gentleman when he posed the question. He asked whether it would fetter the discretion of the courts. In practice, including the word ''must '' would create greater difficulty, because the courts would then say that although they had to do it, they would not be entirely sure how to carry out the first exercise, which is somehow to equate a period spent on remand with the nature of the community sentence to be applied. For those reasons, we think it more sensible to have ''may'', so that we can leave the courts to weigh those considerations when deciding what the appropriate response should be in the circumstances.

Dominic Grieve: I am grateful to the Minister for his response. I hope that what he said will lead to the system working properly in practice, but I still have a slight anxiety about that. I accept that the court might find it difficult, because it is trying to reconcile two very different things—a period in custody and a community sentence—but it is nevertheless an exercise that any sensible judge would have go through, and if he does not, the sentence that he passes could be open to criticism. To that extent, I have a preference for the word ''must'', but my preference is not so great that I would wish to press the matter to a Division. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 132 ordered to stand part of the Bill.

Clause 133 - Community sentence not available where sentence fixed by law etc.

Humfrey Malins: I beg to move amendment No. 609, in
clause 133, page 76, line 4, at end insert 
 'save for offences under the Road Traffic Act'.
 The amendment may point to a rather huge gap in my knowledge. If the Minister tells me that, I will be suitably chastened.

Hilary Benn: It may be helpful to say that sentences that are ''fixed by law'' are mandatory life sentences for murder only. Sentences under the Road Traffic Acts are not relevant to the provision.

Humfrey Malins: How helpful the Minister has been. Labour Members will realise that we are making good progress this morning by making our points briefly. It occurred to me that a sentence fixed by law could include sentences that are set in stone, such as the compulsory 12 months' disqualification for failing a breathalyser test, for which community sentences are
 often passed. It was my misunderstanding of the phrase ''fixed by law'' that led me to suppose that it meant sentences set in statute. I hope that the Committee does not think that those two minutes were time wasted. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 133 ordered to stand part of the Bill.

Clause 134 - Community order for persistent offender previously fined

Humfrey Malins: I beg to move amendment No. 610, in
clause 134, page 76, line 15, leave out 'three' and insert 'two'.
 I return to the fray more determined than ever. My first thought on reading the clause was that it tends to restrict judicial discretion and is entirely unnecessary. I want to tease out from the Minister the exact reasons for the clause and to tell the Committee what is likely to happen in practice. 
 Let us assume that a defendant is before the court charged with petty theft. He is a first offender. The court may take the view that he deserves a conditional discharge or a fine. If he is in court having appeared once before, he is a second offender, and perhaps the court will take a lenient view. Let us then assume that he appears for the third time, with two previous convictions for theft. It might equally be two previous convictions for common assault or any other slightly run-of-the-mill offence. He could, for that matter, have convictions for four or five previous offences of a similar nature. That does not matter. He is before the court, and the court will have to decide, on the basis of the nature and seriousness of the current offence and the defendant's background, the appropriate sentence to pass on that particular defendant. 
 The scenario as expressed in clause 134 would involve a defendant who had, 
''on three . . . previous occasions . . . been sentenced to a fine without any community order, youth community order or imprisonment''.
 The statute, having defined him in that way, states in terms that a community order is the appropriate reaction. Is it necessary to specify three or more occasions? What is the difference between three or more such occasions and one or more—or two? Is it not likely that after the judiciary learn of the defendant's antecedents and are told, ''This is a defendant who has on three previous occasions been fined'', the Crown will straight away remind the judge of section 134—in effect telling the court that that is the provision that must be considered? Why should that happen if the defendant has appeared in court and been fined three or more times, as opposed to twice? Is judicial discretion being restricted? Is not clause 134 a way for the Government to tell the judiciary, ''This is how to sentence someone who has three or more previous convictions with a fine,'' when they should really be telling the judiciary to decide on the basis of the current offence and the defendant's record? The clause is too prescriptive.

David Heath: I applaud the amendment as a means of teasing from the Minister the Government's thinking, although in its own right it is no more logical than the Government's position. I think that the hon. Member for Woking would accept that. I am concerned about the possibility that we are perhaps putting into statute an automatic escalator towards a community sentence for offences that the court accepts do not in themselves warrant them. It is only the cumulative effect of several smaller misdemeanours that have been assessed and felt to warrant such a sanction. That raises several questions about the discretion of the court because it gives a signal about what might be considered appropriate action by the court. We can also question whether it is right by the principles of sentencing in the first place. The argument is that the court should sentence to deter someone from reoffending. However, there is a wide spectrum of offences to be taken into account. It may not be a repeat offence or even in a similar category; there could be a very wide range of offending behaviour. The courts should not be given a clear signal to ratchet up the process for a crime that of itself would not normally attract a sentence of such severity. I shall be interested to hear whether the Minister believes that he is fettering the discretion of the court. I have a slight suspicion that this is one of those measures that the Government think will sound rather tougher in theory than in practice.

Hilary Benn: This has been a useful discussion. Much of the offending that would be caught by this provision would be minor: low level public disorder and minor road traffic offending, for example. It would be of a kind that would warrant only a community sentence when it is clear that there is a need for such a penalty. That need is unlikely to arise unless persistency is clear. That is the argument for the threshold of three rather than two. We think, although it is a matter of judgment, that three is a better definition of persistency than two. It would not be automatic, and the court will be given a range of considerations to take into account in reaching a judgment, including subsection (5):
''This section does not limit the extent to which a court may, in accordance with section 127(2), treat any previous convictions of the offender as increasing the seriousness of an offence.''
 Reducing three to two would increase the rate of the escalator, which is the point made by the hon. Member for Somerton and Frome. It is a matter of judgment. The Government consider this a sensible provision, as it re-enacts the Powers of Criminal Courts (Sentencing) Act 2000, but amends it in the way that we have just debated.

Humfrey Malins: I am unhappy because it is not good to put into statute something along the lines of ''three or more previous occasions.'' Three is purely subjective; it could be two or one or four or six; you pays your money and you takes your choice. It is clumsy drafting. The hon. Member for Southwark, North and Bermondsey nods; he agrees with us. It is clumsy drafting; it is completely superfluous to the real world. It is yet another clause in the Bill that adds nothing to the administration of good justice. It is useless, although it is not a point of principle that we will go
 to the wall for. It will make no sense in the courts; it will cause them more work and give them more to consider. It moves sentencing too far away from the sentencer on the day, who certainly does not want to have a lot of arguments about whether the defendant has appeared twice, three times or four times before. In short, the provision is absolutely useless, and over the years ahead will be seen to be badly drafted and completely irrelevant, although that is not untypical of much that we have to consider. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Amendment made: No. 690, in 
clause 134, page 76, line 15, leave out 'in Great Britain' and insert 
 'by a court in the United Kingdom'.—[Hilary Benn.]

Hilary Benn: I beg to move amendment No. 691, in
clause 134, page 76, line 17, leave out from beginning to 'and' in line 18 and insert 
 'had passed on him a sentence consisting only of a fine'.

Eric Illsley: With this it will be convenient to discuss Government amendments Nos. 692, 693, 699, 698 and 700.

Hilary Benn: This follows on from the earlier debate and the agreement given to amendment No. 690. The amendments are intended to ensure that the application of sentencing provisions within part 12 to service courts and service convictions is correct.

David Heath: It is my turn to parade my ignorance. Can the Minister say whether service disciplinary proceedings normally impose fines rather than suspension or reduction in pay, and whether that is construed as a fine for the purposes of the clause? A doubt is raised in my mind, in that the normal sanction on service personnel might not be for them to pay a fine into a service disciplinary proceeding but simply for them to have that taken from their pay packet. Is that a proper construction?

Hilary Benn: I do not know the answer to that question, as the hon. Gentleman can probably tell from my raised eyebrows, but I shall find out the answer and communicate it to him.

Lady Hermon: I have a slight concern about the reference to convictions within the United Kingdom—I do not have a quibble about Northern Ireland's being left out. In the European Community, it is a fundamental principle of community law that there should be the free movement of workers from one member state to another, for example, from the Republic of Ireland into Northern Ireland. If my memory serves me correctly, in the case of R v. Bouchereau a number of years ago, the Marylebone magistrates court rightly took into account the previous convictions that had taken place outside the UK of a French national who had come to England for work. Will the Minister think again about convictions that have been incurred in member states other than the UK?

Hilary Benn: I undertake gladly to reflect on the point that the hon. Lady has raised, and perhaps
 couple that with a response to the hon. Member for Somerton and Frome.
 Amendment agreed to. 
 Amendments made: No. 692, in 
clause 134, page 76, line 31, at end insert— 
 '(3A) In subsection (1)(b), the reference to conviction by a court in the United Kingdom includes a reference to the finding of guilt in service disciplinary proceedings; and in relation to any such finding of guilt the reference to the sentence passed is a reference to the punishment awarded. 
 (3B) For the purposes of subsection (1)(b), a compensation order does not form part of an offender's sentence.'.
 No. 693, in 
clause 134, page 76, line 33, leave out from 'has' to end of line 34 and insert 
 'passed on the offender a sentence not consisting only of a fine'.—[Hilary Benn.]
 Question proposed, That the clause, as amended, stand part of the Bill.

John Mann: This is an appropriate time briefly to flag up the issue of drugs courts, which are the major omission from the Bill. In my constituency, the main offenders to which the clause will apply are drug addicts. It is absurd to fine them, because they steal to fund their addiction. They are responsible for 95 per cent. of the crimes committed in the west of my constituency, where the majority of the population live. According to police estimates, 50 drug addicts go through the custody suite of Worksop police station every week.
 Drug addicts are involved in the overwhelming majority of crime, and fining them merely means that they will steal more to feed their addiction. The police recognise that, and are loth to arrest addicts for petty offences, because it is a waste of police time. They know that the same people will go through the criminal justice system at great expense and be fined, only to return to the streets to steal even more and create further misery. 
 There is, of course, a major dilemma because the local community does not want to be burgled. Shopkeepers are the victims of the overwhelming majority of the really petty and persistent offences. They want the police to be firm in apprehending offenders, but to understand that simply apprehending and fining them will cause additional problems. That dilemma arises not only day in, day out, but hour in, hour out. 
 I understand the logic behind the reference to those who have been fined on 
''three or more previous occasions'',
 but I ask the Minister to reflect on the issue before Report. One could argue that the clause will assist us in dealing with more persistent drug-addicted offenders, because they will be more likely to be given a community order early on. However, it may be a barrier to dealing with new petty offenders, and may start the cycle of fining and reoffending. 
 At some stage, we will need legislation on drugs courts. Such courts would take responsibility for handling this major category of offence away from 
 other courts and would deal with it separately. That would involve magistrates and others who were trained in and understood the issue. 
 I hope that the Minister will reflect on whether the wording of the clause and of subsection (1)(b), in particular, might not give us sufficient leeway to hand down an effective sentence to drug-addicted offenders. That may force them to go through an unnecessary loop or two before being offered a community order.

Humfrey Malins: I listened carefully to the hon. Gentleman, who has done very good work on drugs matters. I applaud him for his commitment and for the work that he has done over the years, and we listen with great respect to what he says. He focused on drug-related offences, which are a major omission from the Bill. We all take different approaches to such offences, but we share the knowledge that they are an increasing problem among our young people.
 I was particularly struck by the hon. Gentleman's observation that small-time thefts fund drug habits. So many youngsters—indeed, even people in their 20s—who appear in our courts persistently shoplift small items such as electrical goods or razor blades and then sell them. How is it best to deal with such people? The drug treatment and testing order has had a mixed impact on the community. In January, I tabled a parliamentary question asking how many such orders the courts had made, how many had been breached or revoked and how many revocations had resulted in a custodial sentence. The Minister's answer was that, between 1 October 2000 and the end of November 2002, which is approximately two years, 10,070 drug treatment and testing orders were made, of which 4,330 were revoked. That is a lot, although it includes 226 for good progress. One can infer, therefore, that over 4,000 were revoked not for good progress. 
 Figures on breaches were available only for the period November 2001 to April 2002. During that time, 2,175 breach proceedings were instigated, in some 40 per cent. of which the order was revoked. Information about re-sentencing in respect of revoked orders was not available. I hear mixed reports about the effectiveness of drug treatment and testing orders. Some courts believe that they are helpful. The difficulty is that there seems to be a shortage of teeth when such an order is imposed, in that the defendant is told to submit to regular testing and to return, but courts are not always certain as to whether the order is going well. For example, the defendant returns to court but the drug treatment and testing order has found that, although he or she has not offended again, traces of drugs have occasionally been found in his or her body. The court has to consider whether the defendant is doing well. 
 Some judges and magistrates regard the drug treatment and testing order as a positive step and others do not think that it is very effective. In considering a sentence, one likes to have the discretion to intervene on a drugs issue at the earliest possible stage if one wants to. As the clause is drafted, someone appearing in court on behalf of a defendant can point to it and argue that because it is only the second time that the defendant has been in court, there should not be a community sentence because the 
 clause mentions three or more previous occasions. The bench will want the discretion to be able to say that, although it is the first or second offence, the background should be taken into account and a community penalty should be imposed. I foresee difficulties, and to that extent I echo what the hon. Member for Bassetlaw (John Mann) has said. I am uneasy that not only is the drugs issue not addressed—

John Mann: Let me pose another alternative scenario that could create a problem. It concerns cases in which treatment services are not available or are perceived not to be. That artificial barrier might provide the get-out that allows the health service—as a provider of treatment services—to get off the hook in terms of providing what should be there in the interests both of the individual and of justice and the community.

Humfrey Malins: The hon. Gentleman makes a fair point. There is a great gap between what is right, and should happen, and the ability of the services in a locality to deliver it. Many sentencers would like to pass a particular sentence, but find that because the facilities to allow that sentence to be served are not available in their locality, they have to jump from one type of sentence to another. It is a real problem, and the position across the country is not consistent. We shall debate drugs on other occasions. The hon. Gentleman does the Committee and the House a great service in the way in which he approaches such issues. I am with him on some points about drugs, although probably against him on others. As I have said, we all recognise that it is a tough problem, which is getting worse. If clause 134 is too restrictive, it will create a potential problem for the future, and we must avoid doing that.

David Heath: The hon. Member for Bassetlaw has raised some serious issues. I should be interested to hear the Minister's reaction to some of the things that he said, particularly about the possibility of introducing drugs courts. My concern, born out of my work with the police service in my role on the police authority, is that drugs are the motor of a wide spectrum of offences—not just the motor behind a few cases of petty theft, but the dynamo behind so much crime. So many offences are related to drug or alcohol addiction that it might be difficult to extricate one from the other without dismantling the legal system to a degree that would cause huge disjunctions in the administration of justice. That is my caveat. We must effectively address issues of addiction, but I suspect that we have to do that in the context of present legal arrangements; otherwise, we shall find that we are simply splitting apart, without adequate outcome, the consideration of a wide spectrum of offences that need to be considered as a whole. I should like to hear the Minister's approach, because we are unclear about the Government's view on this important issue.

Hilary Benn: This has been a useful debate on the clause, although it has ranged over wider issues. My hon. Friend the Member for Bassetlaw has, once again, drawn our attention to the extent of the problem. I hope that he will find considerable comfort in other parts of the Bill—I see that he is nodding in agreement—in particular, in clause 160 and
 the range of flexible sentences that the Bill will make available under the new generic community sentence. The hon. Member for Woking gave a fair reflection of the range of experience, and there has, undoubtedly, been a big step forward. The fact that some people fall out of that net is simply recognition—a point made forcefully by my hon. Friend the Member for Bassetlaw in an earlier debate—of the difficulty of freeing oneself from the imprisonment of a drug habit. People will fall by the wayside and may need to be helped on several occasions. Clearly, it is extremely important that we should try to do that through all the work that we are doing. The hon. Member for Somerton and Frome made an important point, because it seems that, whatever precise mechanism is used, the court must develop knowledge and expertise in handing out sentences that are appropriate to deal with the fundamental problem. In response to the point raised by my hon. Friend the Member for Bassetlaw, that is such an important part of the court's work.

Humfrey Malins: Does the Minister think that the clause could in any way restrict the ability of a sentencer to intervene with a drug treatment and testing order on a first or second minor shoplifting offence?

Hilary Benn: It will depend on the circumstances and on whether the offence itself warrants a community sentence. We are trying to balance the issue that has been raised about drugs offences. We have not reduced the level to two previous convictions—a kind of up-tariffing of the system. That was the weakness of the hon. Gentleman's amendment, which he acknowledged.
 There is a broader—and real—issue about the probation service. If one talks to those who work in probation, they will say that, with community sentences, they are now dealing with a range of offending that would have been dealt with in the past by fines. It is important to reflect on that. If we wish the probation service to make use of the increased resources that we make available, and to put time and effort into the work that will make the greatest difference, in particular to persistent offenders, we shall also need to ensure that it is not overloaded as a result of the process of up-tariffing, which is a result of the decline in fines that we have seen over the past decade.

Dominic Grieve: I appreciate the point that the Minister is making. I am sure that he will appreciate that the theme that strikes us—it only strikes me so forcefully from my professional experience—is the number of times that one encounters an offender who has made earlier appearances in court, the underlying cause of whose offending the court has failed completely to get to grips with. The fining mechanism has simply been a delaying tactic that has made it much worse and more difficult when the time finally comes for someone to try to implement a sentence that gets to grips with his offence. That is our underlying fear when we consider the trigger mechanism in clause 134.

Hilary Benn: I hear the hon. Gentleman's point. In the end, we are trying to achieve a balance. The honest answer is that we shall have to see how the system works.
 Question put and agreed to. 
 Clause 134, as amended, ordered to stand part of the Bill.

Clause 135 - General restrictions on discretionary custodial sentences

Humfrey Malins: I beg to move amendment No. 611, in
clause 135, page 77, line 3, leave out from 'that' to end of line 4 and insert 
 'only a custodial sentence can be justified'.

Eric Illsley: With this it will be convenient to discuss the following amendments:
 No. 706, in 
clause 135, page 77, line 4, at end insert— 
 '(2A) In considering the appropriate sentence under subsection (2) above, the court should start with the presumption that the sentence will be a custodial sentence when the offence has been one of violence against the person, interfering with the course of justice, causing death or injury by dangerous driving, or the commission of a sexual offence against or in connection with a minor.'.
 No. 646, in 
clause 136, page 77, line 19, at end insert— 
 '(3) For the purpose of this section, in assessing the seriousness of the offence a court shall not take into account general or specific deterrence, or the need to punish the offender for the offence.'.

Humfrey Malins: I wish to speak briefly to amendment No. 611. The clause deals with general restrictions on imposing discretionary custodial sentences. My amendment would alter lines 3 and 4 of page 77.
 Why cannot subsection (2) read, ''The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that only a custodial sentence can be justified''? That is the type of wording that has historically been used. 
 Mr. Illsley, I do not like the word ''was''; I would prefer the word ''is'' to have been used in the drafting. In statute, ''is'' is used more often than ''was''. Hitherto, the practice for so long has been that a sentencer will say to the defendant, ''This offence is so serious that only a custodial sentence can be justified.'' 
 Reasons, which I shall not go into now, are normally given as to why the offence is so serious. The judge gives a fairly brief homily to the defendant about why he or she is going to prison. The reason is that the offence is so serious that only a custodial sentence can be justified. It seems to me that clause 135 asks us to say that the reason that a person is going to prison is that the offence is so serious that neither a fine alone nor a community sentence can be justified. Why say that? Will it be the case in future that a defendant, on being asked to stand before sentencing, faces a different form of wording from that which he or she has heard in the past, which was, ''This is a very serious offence, and I have had to consider whether a fine alone would be satisfactory. I have had to consider 
 whether a conditional discharge would be satisfactory. However, I have concluded that neither would be''? 
 The sentencer goes on, ''I have to turn my mind to the issue of the community sentence. Having considered it very carefully, I have concluded that a community sentence cannot be justified for this offence.'' By that time, the defendant is shouting, ''For goodness' sake, tell me how long I have got; I do not want this diatribe.'' It is all very well for Committee members to frown; it is a fact. People have to spend time in court in order to see what happens. Defendants throughout the country are keen to hear quickly what their sentence is. The longer the civil servants, the Judicial Studies Board and the Lord Chancellor's Department spend earning their livings drafting forms of words, the more useless it all becomes in practice.

Simon Hughes: Some of the hon. Gentleman's experiences are mine, too. Defendants are just waiting for the magic or not-so magic words: two years, five years suspended or whatever. In the light of his experience, would the hon. Gentleman agree that after conviction, whether by plea or finding of guilt, all the procedural matters should be dealt with before mitigation and other matters begin? All that stuff can be got out of the way at the beginning, rather than in an elongated, protracted, complicated, verbose and confusing way. Things that are nothing to do with the crime or the sentence can be dealt with immediately after the verdict has been passed.

Humfrey Malins: The hon. Gentleman makes a reasonable point. There might be opportunities in that area. However, there comes a time when the defendant must be sentenced. As the hon. Gentleman confirms, most defendants want to hear what they are going to get—[Interruption.] The hon. Member for Nottingham, North (Mr. Allen) might seek to intervene on me. Had he done so, it would have been a useful intervention, as always.
 Given the way that things are going, in five years' time some poor district judge or magistrate will have to read a book about why certain things have been considered and rejected. It is a bad trend, and the Minister must understand how bad it is. What is wrong with telling the defendant that the offence is so serious that only a custodial sentence can be justified and then explaining why it is so serious? If there is anything wrong with that, I should like to know. If there is nothing wrong with it, why is it not in the statute? What is better about going through the whole process of considering whether a fine or a community sentence can be justified? What does subsection (2) add to our judicial system?

Simon Hughes: I shall say a word about the hon. Gentleman's amendment. He knows that I support his general approach. It is proper that we should have guidelines and frameworks, and that the courts have presumptions. The wording that the hon. Gentleman has suggested would make the issue tidier, shorter and clearer. If we are all agreed that custody is the last resort, we should start with the question, ''Can a custodial sentence be justified?'' If, as a last resort, it cannot, the other options should be considered—the sentencer must work up and down the tariff.
 Amendment No. 706, tabled by my hon. Friend the Member for Somerton and Frome and myself, is designed not just to put forward our view, but to ask the Minister two questions that have already been touched on. I hope that it will allow us to do so in a non-confrontational manner. First—this came up the other day in relation to burglary—have the Government considered the presumptions in favour of custody, or against it, or for it only in certain circumstances? The call from the hon. Members for Nottingham, North and for Hertsmere (Mr. Clappison) and from the public is for clarity on what punishment fits what crime. Everyone has a view on that question, but mitigating factors may change the presumption; nevertheless, I strongly believe that it would be better, at least in those cases where people might expect to be imprisoned, to start with that presumption. I do not have an absolute or theological view on the matter, but if people use violence on others the presumption should be that they will lose their liberty. Society should not allow people to carry out or threaten violence; people should know that it is unacceptable to cross that line, whether in the street, in the home or anywhere else. That is the first of the examples of where a sentencing presumption would be helpful. 
 Secondly, we need to send a clear signal that interfering with the course of justice will not be tolerated. It is serious and important that the justice system should not be tampered with, whether by perjury or by the intimidation of jurors. Again, the presumption in such cases should be that those who do it will be put away. They should not expect anything else. 
 The third example relates to the great public discontent about penalties for driving offences. I expect that all members of the Committee have had constituency experience of the penalties given—there was a case in the north-east only the other day—following driving that results in death or serious injury. I am talking of cases where the driving was clearly likely to have that result. In other words, the result was not accidental; the driving was reckless or careless. 
 Constituents and friends of mine, Christine and Jim Bradford, lost their 14-year-old only son—he was a healthy, lively, football-playing and energetic boy—after a collision. He was run over by a car, was seriously injured and died some days later after being airlifted to the London hospital by air ambulance. The obvious trauma followed, including many investigative issues, and I tried to assist my friends in their struggle through the process. I already had a great belief in the work done by RoadPeace and by Birgitte Chaudhury and all those who have worked with her over the past 10 years. I have been to their conferences and to their annual memorial service for victims of road collisions, which is now a Europe-wide movement. Safety on the roads is the biggest transport issue because that is where most deaths and injuries occur. We need to send a strong signal to those above the alcohol limit or who have taken drugs who use lethal weapons—namely cars—that driving in that condition puts the life and physical integrity of others at risk. We would do well 
 to think of reviewing the sentencing and punishment of such offences. 
 The last example is in relation to offences against children. I note today's welcome briefing by the hon. Member for Spelthorne (Mr. Wilshire) in the Attlee Suite. Following his time with the police service parliamentary scheme, he has invited police who deal with child protection and paedophilia to brief Members for three hours. It is a statement of the given, but offences against children are reprehensible because they interfere with the innocence of undeveloped or not fully developed and growing individuals. It is corrupt, perverted and wrong to behave in a way that risks harming such youngsters. Society says that clearly: it holds offences against children to be particularly unacceptable. In these days of pornography, the internet and so on, there is a world of difference between what adults might think acceptable for themselves—it may or may not be generally acceptable—and that which by definition abuses and exploits children. We need to send clear signals about that. That is the purpose of amendment No. 6, which I hope is perceived as coming from an attempt to struggle with what the sentencing presumption should be. 
 Amendment No. 646 is a probing amendment of an entirely different sort. I shall explain it, as it might appear slightly misleading, even though it is a proper amendment. The Minister will be familiar with the issue raised. I shall share the briefing that I have been given. 
 The reason for the proposed new subsection is to test what the law currently is, and what it would remain unamended, given an important recent Court of Appeal case called Cunningham. We want to ensure that we end up with the presumption that a custodial sentence should be 
''for the shortest term . . . that in the opinion of the court is commensurate with the seriousness of the offence''.
 The difficultly arose because that phrase, which came from section 2(2)(a) of the Criminal Justice Act 1991, was interpreted by the Court of Appeal in the Cunningham case in 1993—the reference is 14 CAR S444—as requiring that the sentence be 
''commensurate with the punishment and deterrence which the offence requires'',
 rather than with the seriousness of the offence, as Parliament intended with the 1991 legislation. It is therefore widely held that the effect of the 1991 Act on ensuring that sentences were commensurate with the seriousness of the offence was altered by that Court of Appeal decision, because suddenly other things, such as punishment and deterrence, became considerations in the same context. If the law is now meant to say that the 1991 Act has been amended by the Court of Appeal interpretation, we should say that, so that everybody knows that that is the score. If that is not the case, we should make that clear, too. 
 I end with a note by Professor Ashworth on that point, which says: 
''If clause 136(2) is intended to overrule this judicial interpretation''—
 which is currently binding on the courts, as I understand the matter— 
''it should do so clearly, which the present draft fails to do; if clause 136(2) is not intended to overrule the Cunningham interpretation, then the new phrase about 'the shortest term' is pointless if''
 other matters do not apply. The issue requires clarification, so that we know where we stand. My presumption is that the best thing to do would be to talk about the sentence being linked to, and commensurate with, the seriousness of the offence. That is the right way forward.

Hilary Benn: May I deal first with the issues that the hon. Member for Woking raised? He asked what the provisions add. The clause is not about the wording that must be used in sentences when they are handed down: it is about the thought process of the court in determining the appropriate sentence. I hear what he says about the wording in the Powers of Criminal Courts (Sentencing) Act 2000, but we have deliberately chosen to move away from that formulation in drafting the clause. We retained the principle that a custodial sentence must be imposed only when the offence is ''so serious'', but added the words in subsection (2), to reinforce the point that a custodial sentence should be a last resort. The process would be to consider whether, in the light of all that the court had heard and the nature of the offence, it would be appropriate to impose a fine. Would a community sentence be appropriate? If not, custody would be considered.

Dominic Grieve: Of course, other options are available besides fines and community sentences—for example, discharges. No reference is made to those in subsection (2). I think that I can understand why, but on the face of it that is slightly odd, since on a strict reading the clause would appear to confine the court to the consideration of a fine, a community sentence or, failing that, prison. What about absolute and conditional discharges? [Interruption.] They are clearly less than fines, but the present wording could be interpreted as suggesting that they do not fall to be considered.

Hilary Benn: That is not the case, as the hon. Gentleman knows. If all the possible options had been listed in subsection (2)—

Dominic Grieve: It would have been rather long.

Hilary Benn: Yes, and it would also have prompted an even more powerful speech by the hon. Member for Woking criticising the addition of words to the statute. We anticipated the objection that we thought he might raise and we tried to make the point without doing so at excessive length. Similar reasoning applied to the wording of clause 136 about the custodial sentence being the shortest commensurate with the seriousness of the offence. We made a deliberate change to the wording, so we would not want to revert to the drafting of the Powers of Criminal Courts (Sentencing) Act 2000, as the amendment would provide.
 I take the point made by the hon. Member for Southwark, North and Bermondsey in relation to 
 amendment No. 706 about the appropriateness of custody for certain types of offence. However, the clauses are not intended, as I am sure he understands, to direct sentencers to impose custody in particular circumstances. They set a threshold or a set of guiding principles to establish when custody is appropriate, and how long a term is appropriate. The amendment has opened up the debate, and we could debate at length the list of offences for which custody could be used—it is endless. In part, the Sentencing Guidelines Council will tackle precisely those issues. The hon. Gentleman will probably understand why it is not appropriate to try, as he has done, to fetter the council's work. 
 To make one practical point, the amendment refers to crimes of violence. Does common assault constitute a crime of violence?

Dominic Grieve: It does.

Hilary Benn: In which case, should anyone who punches someone be sent to prison? The answer, self-evidently, is no. The hon. Member for Southwark, North and Bermondsey would probably accept that his amendment is defective in that respect. However, I understand the issue that he raises about when, in general, custody should be considered appropriate.

Simon Hughes: I entirely understand the Minister's response. The amendment set out an initial position. Might it be appropriate—I do not mean to tie him to his reply—to suggest that we have a debate later, and that the issue is just the sort that the Sentencing Guidelines Council could properly address, in the interest of greater clarity about what sorts of sentences should be the starting point for particular crimes?

Hilary Benn: There is no doubt that the principal job of the Sentencing Guidelines Council will be to consider, over time, a range of offences and the appropriate sentences. In the course of that work it will inevitably discuss the appropriateness or inappropriateness of custody. That is a central part of its work and I am at one with the hon. Gentleman in perceiving a case for greater clarity, for everyone's benefit, including sentencers and the public.
 Amendment No. 646 would prevent a sentencer from taking into account the punishment of the offender when setting the length of the custodial sentence. That is not appropriate, because we have already agreed clause 126, which sets out general purposes of sentencing, and punishment is one of those purposes. It will certainly almost always be the case that if a sentencer considers a custodial sentence to be appropriate, the need to punish the offender or to protect the public will influence their decision. The clause sets out a principle, so a provision about the purpose of sentencing is not appropriate. To answer a very specific question, it is not our wish to change the interpretation of the law; we have no intention of departing from the Court of Appeal's interpretation of the Cunningham case. That is what the amendment seems to want to do.

Simon Hughes: I will consider the Minister's words. Even if there is no intention to change the law from the combination of the 1991 Act and the Court of Appeal
 decision, there may still be a need for further clarification. However, I will return to that later.

Humfrey Malins: Obviously, the Minister will win any vote that we might force. However, I suggest very gently to him that he has comprehensively not won the argument. Amendment No. 611 is a good amendment. I have heard nothing to persuade me that the law is improved by subsection (2) with its
''neither a fine alone nor a community sentence can be justified for the offence.''
 My hon. Friend the Member for Beaconsfield pointed out that a fine and a community sentence are hardly the only disposals available to a court. Can one imagine a sentencer having to say to a defendant, ''I have concluded that this offence is so serious that neither a fine nor a community sentence can be justified for it.''? The defendant will say, ''Hang on a minute, what about an absolute discharge or a conditional discharge? Have you considered that? Has anyone thought of deferring sentence on me?'' ''Oh,'' says the sentencer, ''I am so sorry; please forgive me. I have concluded that—'' and then goes on to recite a dozen disposals that are not deemed appropriate in the case before passing sentence. 
 If the Minister does not like my amendment, does he like the prospect of a sentencer saying that a matter is so serious that no disposal can be justified for it other than custody? No other disposal covers all these matters. It is a frightful mess. We have won the argument as comprehensively as we would have lost the vote. As we like to save our votes for critical occasions, I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Clause 135 ordered to stand part of the Bill. 
 Clause 136 ordered to stand part of the Bill.

Clause 137 - General limit on magistrates' court's power to impose imprisonment

Simon Hughes: I beg to move amendment No. 647, in
clause 137, page 77, line 23, leave out ''12 months'' and insert ''51 weeks''.

Eric Illsley: With this it will be convenient to discuss the following amendments:
 No. 612, in 
clause 137, page 77, line 23, at end add 
 ''but may pass consecutive sentences in relation to two either way offences each of up 12 months.''.
 No. 613, in 
clause 137, page 77, line 40, at end insert— 
 ''(8) A district judge does not have power to impose imprisonment for more than 2 years in respect of any one offence but may pass consecutive sentences in relation to two or more either way offences each of up to two years.''.
 No. 615, in 
clause 138, page 78, line 4, leave out ''65 weeks'' and insert ''2 years''.

Simon Hughes: This is a simple amendment, the logic of which will, I hope, appeal to the Government. As the Minister and his officials know, the reason for
 changing from 12 months to 51 weeks is to restrict the increased sentencing powers of magistrates to the imposition of sentences that are called custody plus sentences. Justice and others have made strong representations to me and, I am sure, to other hon. Members in favour of such a limitation, so that once 52 weeks—a year—is triggered, the case will move into the next league of offences.

David Cameron: Will the hon. Gentleman explain why he is so worried about giving magistrates the power to pass a sentence of a year or more when the people who receive such sentences will be out of prison after six months under the provisions for automatic release at halfway point of sentence, or even earlier under the early release scheme? Should we not trust our magistracy and give it the powers to pass sentences that will at least have some effect on those criminals who receive them and reassure victims that justice is being done locally?

Simon Hughes: Yes, we should trust our magistrates, and by and large the magistracy is well trusted. It is neither the hon. Gentleman nor I but the Government who have commissioned a report on sentencing that proposes that certain stages should have certain implications. I am trying to reflect other proposals that have been made. Magistrates have powers to impose non-custodial sentences, to impose a custodial sentence of up to six months or, if they do not think that their sentencing powers are sufficient, to send a case to the Crown court for sentence. One of the proposals in the package would replace the power to send up for sentence with a wider power to sentence for longer periods.
 The hon. Gentleman may well be a supporter of that proposition, which would mean that if there was a choice about where the trial should take place, people would have some certainty. For example, they would know what the maximum sentence would be if they were to go before the magistrates, and they would not risk the worst of both worlds or be uncertain about what might happen. I understand and am supportive of that argument. 
 It is the general presumption that if the sentencing powers of magistrates are increased, they will send more people to prison. I have heard no one argue that that will not be the case. I am trying to put myself in the minds of the magistrates, and it seems likely that if they know that the maximum sentence that they can impose is 12 months or 51 weeks, they will more often go up to the maximum limit, just as they do now with the limit of six months, so we could all reasonably expect them to pass longer sentences more frequently.

David Cameron: Good.

Simon Hughes: The hon. Gentleman clearly considers that a good thing.

David Cameron: In some cases it might be.

Simon Hughes: Yes, that is so, which is why I said that I had no problem with the idea that magistrates should have greater sentencing powers. However, how
 do we ensure that when people are sentenced, they, the community, the court, the people who read the local papers and the local community understand what the sentence means? I think that we are all signed up to the idea that we want that to be as clear as possible. It is perfectly reasonable to have a system that says, ''Your sentence, Mr. Benn,''—or ''Mr. Cameron,''—''will be 10 months, half of which will be served inside and half outside. There will be conditions attached to the period served outside, and if you break them, you will be liable to go back inside.'' That is clear and means—a point made earlier by the Minister—that non-custodial alternatives will be seen as sentences, as they clearly should be.
 I think that we are also all signed up to the fact that there is a problem at the moment because the home detention curfew, on the principle of which we have supported the Government for the past five years, is not alluded to when the courts are carrying out sentencing. There is no discussion before the public, the defendant, the victims, the witnesses, the court reporter or anyone else that a sentence of 10 months may be reduced by half to five months, and the offender may be eligible for release even earlier. To pick up the point made by the hon. Member for Woking, it is important that we address the issue so that people understand that there may be an automatic move from custodial to non-custodial halfway through the sentence, and that good behaviour can reduce the sentence further. Everyone needs to know that that is the score. 
 As the hon. Member for Witney will know, prison governors say that they need such flexibility so that they can control their prison populations. Incentives are important for prisoners. I remember even from my very earliest discussions with prisoners that the three letters that they know best and use most are EDR, which stands for earliest date of release. I am sure that we have all had letters from constituents in prison, and it is clear that the date on the calendar after which they know that liberty can come is hugely important to them. 
 Given that we are to have sentences of more than six months, the amendment would ensure that prisoners could benefit from the Government's custody plus idea—it is a good idea—and that that would happen automatically for those who fell within the relevant range of punishment. I am not against magistrates having more power, but we must be careful when we legislate to give them that power that we do not end up with significant numbers of higher sentences. We must be careful to ensure that alternatives are in place. 
 If I may, I will return to another aspect of the issue on clause stand part. However, magistrates should have more power to give custodial sentences only when alternatives are in place. It would be a weakness to have the power to imprison but not to do other things. 
 Amendments Nos. 612, 613 and 615 were tabled by Conservative Members. They would clarify what happens when there are sentences for more than one offence, so that there would be no doubt about the total sentence. I hope that I might persuade even Conservative Members that it would be more accurate 
 and more helpful if the maximum period for which magistrates could sentence people was 51 weeks—that is, just under a year.

Dominic Grieve: My hon. Friend the Member for Woking will speak to our amendments in detail, but I want to deal with one immediate point. It relates to reconciling the 12-month period of imprisonment in the clause with the 51weeks to which the schedule extends so many sentences. I would be grateful if the Minister could clarify why schedule 19, which deals with lengthening sentences, refers to 51 weeks throughout, when the clause refers to 12 months. That is slightly odd, and I would have thought that the two should match up, and indeed that that was a fundamental purpose of these sentencing provisions. Why does schedule 19 refer to 51 weeks, but the clause to 12 months?
 I have no difficulty with the principle that we should extend the sentencing period. The issue was raised some time ago, and in the context of maintaining jury trial, in which I fundamentally believe, I have no difficulty with increasing magistrates' sentencing powers. I hope that that might somewhat reduce the number of cases that go to the Crown court. In my professional experience, numerous cases appear at the magistrates court and are committed to the Crown court, but the sentence that is finally imposed would be within the jurisdiction of the magistrates court. That has unnecessarily added greatly to the time and cost of the case. If this were to provide a further reassurance that magistrates courts could deal with such cases, it would be a good thing. 
 However, some of the points made by the hon. Member for Southwark, North and Bermondsey are relevant. We shall deal with the concepts of custody plus and custody minus. I had always understood that an increase in the jurisdiction of the magistrates courts would be matched by the introduction of custody plus and custody minus. However, a number of the things that the Government have said lead me to think that that is not now going to happen—at least, not immediately. I seek clarification—now that we are coming to the key issue of increasing magistrates' powers—as to how the increase in power and the operation of custody plus and custody minus will be reconciled, and how they will operate in tandem. If they cannot, the hon. Gentleman must be correct. The prison population will increase substantially, and that rise will take place at a time, as the Minister knows only too well, when it is already at a maximum, with no leeway for further increase. That brings some public policy considerations into play. 
 Nothing does more to bring the system of justice into disrepute than public perception. The point has been made that not only do people want to know about sentences that are passed, they want to understand what they mean in practice. They also need the reassurance that administrative requirements and convenience will not lead to those sentences being subverted. The main reason why sentences of imprisonment are subverted is that the Home Secretary is tapped on the shoulder by the director of the Prison Service and told that an impossible situation has been reached, and that some device or 
 mechanism has to be used to push people out of prison. The past 12 months have been littered with examples of that, and with ad hoc provisions and decisions. It has been suggested that the Lord Chief Justice has been given nudges and winks by the Home Secretary to alter sentencing guidelines suddenly. 
 It is all very well going through the system and starting with a general limit on magistrates courts' powers to impose imprisonment, which I greatly welcome. However, that is pointless unless the background framework is coherent and can be implemented. I hope that before we agree the clause the Minister will enlighten us as to how it will work, will reassure us about the difference between 51 weeks and 12 months, and will explain why both are used so freely in the Bill. I shall not discuss the amendments. I leave those to my hon. Friend the Member for Woking.

Humfrey Malins: The amendments are essentially probing. However, might I ask the Minister whether he expects that, as a result of clause 137 and like clauses, there will be an increase in the prison population? Such an increase is always a matter of concern to Governments. What effect does he think that these measures will have?
 By way of background—apart from noting, as we did the other day, that the maximum that people serve in prison when sentenced to six months in a magistrates court is six weeks, so long as they behave properly—I echo a point made by my hon. Friend the Member for Beaconsfield: when somebody is committed from the magistrates court to the Crown court for sentence, on the basis that the powers of the magistrates court are thought to be insufficient, it is a regular feature that a sentence is then passed that would have been available to the magistrates. Indeed, a non-custodial sentence may be passed. I have a feeling that a raft of cases in which, hitherto, magistrates have been sentencing to three and four months' custody will now result in sentences of nine and 10 months' custody. The argument is that if the magistrates are given the powers they will use them. I wonder what the Minister thinks about that. An increase in the prison population may result. 
 As a typical example, an average defendant aged 30 has 38 previous convictions, mainly for the shoplifting-type offence. He has a drugs background, but in this case the court will say to itself, ''We have tried to intervene before with a drug treatment and testing order. We have tried everything. The defendant has had X chances, and we have had enough. He's done too much thieving in Oxford street, so a custodial sentence is appropriate.'' The court's next question will be, ''What is the maximum sentence available? The person has pleaded guilty, so a discount must be given, but he was caught in the act, so the discount will be pretty small.'' 
 The judge will say, ''Stand up, Smith. Five months.'' As night follows day, that will change. The judge will now say, ''Stand up, Smith. Ten months.''

Simon Hughes: The evidence shows that, at present, the reason why prisons are more full is not because
 more people have been appearing before the courts but because the sentences imposed for the same offences have been getting longer. Any encouragement to give a longer sentence will inevitably have both those knock-on effects.

Humfrey Malins: Yes, and I have often thought that one reason for the impact on our prison population over the years, and on the number of sentences passed, is that Defendant Smith first appeared in court in 1970, and he has had 36 further convictions. It is no wonder there are 60,000 persistent offenders every year in the country whose sentences are ratcheted up each time.
 Like my hon. Friend the Member for Beaconsfield, I am content with the general mechanism to increase magistrates' sentencing power, so—neutrally—I ask the Minister to focus specifically on the effect that he thinks the clause will have on sentencing and on the prison population. 
 Amendment No. 612 deals with consecutive sentences. I ask the Minister whether it is the case that if two either way offences are before the court, it can impose 12-month sentences on each, to run consecutively. If a guilty plea is entered, in which case the discount must be given, is it the case that the court can sentence to eight, nine, 10 months consecutively for two offences? What is the maximum custodial sentence that the magistrates court can pass where the court is dealing with two either way offences? Hitherto, those offences could have resulted in consecutive sentences of up to six months. 
 Amendment No. 613 refers to the position of district judges. Its purpose is to ask the Minister a little about the Government's thinking on the former stipendiary magistrate. There was a time when there was a great deal of thinking in Government circles and elsewhere on the number of tiers of courts and the powers for different people. Whether this was right or wrong is not the issue, but it was mooted that particular sentencing powers should be given to a district judge that were separate from and heavier than those available to a magistrate sitting in the same court. Was that ever part of anybody's thinking, and is there a reason—there probably is—why it has not been included in the legislation? 
 Finally, amendment No. 615 relates to clause 138, in which the period of 65 weeks is mentioned. I prefer a reference to two years, simply because I cannot understand why 65 weeks is considered appropriate, although that is my fault, not the Government's, as I am sure that the whole thing was explained beautifully somewhere. I think that I have missed the point and would very much like the Minister to deal with that. 
 I think that there can be and will be a wider debate about sentencing at another stage. However, my probing amendments merely seek confirmation of what I believe to be the case regarding maximum sentences, and raise queries that I hope the Minister can answer.

Hilary Benn: The hon. Member for Southwark, North and Bermondsey asked about how the sentences
 that magistrates will lay down under the new arrangements might increase. The clause gives them an increased power to impose a sentence of 12 months instead of only six months. I shall return to the interrelationship between that and custody plus later. The answer is: what would the Crown court have done in relation to that offender under the current arrangements? That is the comparator.
 There is an issue about the phasing, on which my noble Friend the Lord Falconer was questioned when he appeared before the Home Affairs Committee. The straight and honest answer is that the Government are still giving consideration to the phasing, and he could not give a commitment that the extended magistrates' sentencing power would occur only once custody plus had been put in place. The Government think that that is right, for reasons to which Conservative Members alluded. Why should magistrates not be given that greater power and trusted to use it sensibly? The hon. Member for Woking talked about cases that have been passed up to the Crown court in which sentences are imposed that are wholly within the current sentencing power of magistrates, let alone those that will be available when the provisions come into play. In relation to custody plus, the issue concerns building the capacity of the probation service to deal with the supervision of short-sentence offenders, which has been widely welcomed, as it is a big gap in the current system. However, it will take time to build up that capacity as the investment goes in and people are trained. 
 Schedule 19, which the hon. Member for Beaconsfield asked about, is intended to bring all the offences therein listed within the scope of custody plus. In other words, some reoffences that currently carry a maximum of six months or less must be made to fit within the new framework. The Government decided to split that into two: schedule 19 changes some to 51, in order to fit within the custody plus framework; and schedule 18 makes others go down to a non-custodial penalty. That is how the exercise has been undertaken. 
 With schedule 19, we want magistrates to be able to sentence for all offences within the maximum of 51 weeks, and to use the new sentence structure of custody plus in full. However, we also want them to be able to sentence more extensively, to deal with either way offences. That is the reason for the increase to 12 months. 
 It might be helpful, in answer to the point that the hon. Member for Woking raised, to be clear what the arrangements in relation to magistrates' sentencing powers will be once the Bill is enacted. Under custody plus, magistrates will have the power to impose a custodial part of a sentence of a minimum of two weeks and a maximum of three months, followed by a period of supervision for a minimum of six months; and magistrates will have the power to sentence to 12 months custody exactly. 
 The answer to the hon. Gentleman's question is that, once the new arrangements are in place, there will be no sentences of four, five, six, seven, eight, nine, 10 or 11 months in custody, because custody plus will involve a minimum of two weeks in custody and a maximum of three months, followed by a period of 
 supervision. That is what custody plus will provides for, and magistrates will have the power of to impose a sentence of 12 months exactly.

Humfrey Malins: Is it envisaged that magistrates will be able to pass a sentence of one day's imprisonment, deemed served? It often happens with overnight cases, when people are dealt with on the spot: they are held overnight and released at 10 am.

Hilary Benn: We may come to that on amendment No. 502, tabled by my hon. Friend the Member for Nottingham, North; if the hon. Gentleman is willing, we shall deal with it then.

Eric Illsley: Order. Given the absence of the hon. Member for Nottingham, North, who is taking part in a debate in Westminster Hall, that amendment may well not be moved.

Hilary Benn: I am grateful to you, Mr. Illsley, for pointing out that my hon. Friend is not with us at the moment—[Interruption.] My hon. Friend is attending to business elsewhere, but the hon. Member for Woking has just made it clear that we shall probably have an opportunity to deal with that point later. I will be happy to respond then.

Dominic Grieve: The Minister has explained clearly how custody plus would work, with a maximum of effectively 51 weeks, but with the custodial period itself being much shorter, and with a 12-month maximum for either way offences. Until custody plus comes in, what range of sentencing options will be available to magistrates? I presume that they will range from one day to 12 months, and that sentences of five, six, seven, eight, nine, 10 and 11 months in custody will still be possible. Will he clarify that?

Hilary Benn: Yes, that will be the case. I was describing what will happen when custody plus comes into play. I shall try to give a complete explanation of the arrangements. The Bill also proposes that the magistrates should be able to impose two sentences of custody plus, but no more. That is why the Bill sets a limit to consecutive sentencing powers in the first instance of a total of 15 months, or 65 weeks, because we wish magistrates to become accustomed to their new sentencing powers. That provision will allow them to impose two consecutive sentences of custody plus, with a maximum of six months in custody. However, in clause 139, we are taking the power to increase those limits over time.

Simon Hughes: What will happen under the Government's current proposals if the magistrates do not exercise the custody plus option, but instead go for the 12 months imprisonment option? What would that mean in practice for the defendant? How is it possible to appear fair if the person who is thought to deserve 51 weeks or 11 months or some such period gets three months inside and then continuing supervision outside, whereas the person who deserves just a fraction more is dealt with under an entirely different regime? People will find it difficult to understand what happens in court, and it will be unhelpful to magistrates. It also suggests massive unfairness, and I can see many cases going to appeal on the fairness of the sentence compared with many other sentences passed by the same court.

Hilary Benn: I hear what the hon. Gentleman says, but we must trust magistrates when exercising the new powers—and I agree with the point made by the hon. Member for Witney in his intervention—to use them effectively. No doubt, they will wish to reflect on the hon. Gentleman's point when all the new arrangements are in place. Custody plus, which has been widely welcomed, will provide a huge additional benefit: provision for supervision. That is the great weakness of the present short sentence structure, as everybody acknowledges.
 I recognise that they were probing amendments. We do not wish to limit the sentencing power of magistrates to just 51 weeks as proposed in amendment No. 647. That would fit awkwardly into the new framework, in which the minimum sentence of custody plus that can be imposed is 28 weeks, made up of the custodial and the supervisory elements. We want magistrates to make full use of the new sentence up to the limit of 51 weeks in addition to the 12 months in the clause.

Simon Hughes: We know what custody plus means. Will the Minister tell us what happens under the new regime if the sentence is one of 12 months? What will that mean in practice?

Hilary Benn: The answer is that it is half and half: half will be served in custody and half not. It would also be subject to the provisions of home detention curfew, to which some people will be entitled and others not, depending on the risk assessment. That is how it will work.
 I think that the amendment No. 613 was a probing amendment. I am sure that the hon. Member for Woking recognises that a separate sentencing jurisdiction would create difficulties for allocation and listing mechanisms. It is more logical and practical that sentencing powers reside with a court and not with a judge. It would be very difficult for a lay tribunal, the maximum sentencing powers of which would be limited to 12 months, to assess whether a case warrants two years in custody or more. It follows that only a district judge could ascertain whether he or she could try a borderline case or whether it should go to the Crown court. There is a danger that the amendment would create a gap between the powers of district judges and the lay magistracy, and that could create tension between the two. Indeed, lay magistrates could see it as an attempt, in the long term, to replace them with a professional magistracy. That is clearly not the intention.

Simon Hughes: Technically, I understand the Minister's answer. I understand the argument for saying that we will give two types of custodial opportunities to magistrates: an under-12-month type and a 12-month type. However, the disadvantages significantly outweigh the advantages. A better regime would be to allow magistrates to sentence up to 51 weeks, with custody plus applying. However, we might need to look at whether three months' imprisonment with the rest of the sentence being served under supervision in the community is the right balance. We could be flexible. Alternatively, we might
 give the magistrates the power to sentence up to 12 months and keep the custody plus regime to run up to and including a sentence of 12 months. In that case, the traditional sentencing would kick in at 12 months and a day. Everybody would understand that if they are given 12 months or less, they will get custody plus, but if they get more than a year, they will get something different.
 That sounds as if it would be much clearer for the magistrate, the defendant and the public reading the paper than what is proposed.

Humfrey Malins: Has the hon. Gentleman noticed that the Minister has not answered two of my questions? The first was whether it would be possible for a magistrates court, under the provisions, to pass a sentence of 12 months plus 12 months consecutively. The second concerned the effect on the prison population—an issue that has not been addressed yet.

Simon Hughes: I think that the Minister answered indirectly by saying that the total would be 65 weeks, or 15 months.

Hilary Benn: I apologise for my omission. It would not be possible under the arrangements for magistrates to impose two consecutive sentences of 12 months, but it would be possible to combine two sentences of custody plus as I described.

Simon Hughes: I presume that the Minister did not deal with the other, much bigger, matter of overcrowding in prisons because we shall return to it when we finish dealing with the amendments to clause 137. I share the Minister's view, based on the experience of the Home Office and prison governors, that in the past short sentences have often, if not almost invariably, been useless. The pattern for people given such sentences was custody without treatment, education or any other regime, then outside—they could disappear. I think that we can all agree about that. Prison governors whom I have met have all strongly assured me of that, and have urged change.
 The benefit of prison inevitably diminishes the more overcrowded the prisons get. The director general, to his credit, has made that abundantly clear. He is not arguing from a political standpoint. He sees, day in, day out, what is happening. With two or sometimes three to a cell, and without the means to provide the amount of education that is desirable, there is reduced rehabilitation. People come out of prison much more likely to reoffend. 
 The blunt truth is that the prison estate is currently overcrowded. We could decide to go down the road of building more and more prisons, but they do not come on stream in two minutes. Even if it were decided to use a lot of boats around the shores, they would not come on stream in two minutes. We need to consider, in any case, whether it would be wise. We already have 
 the largest prison population in western Europe. I stand to be corrected on that, but that is my impression. Other countries appear to have been highly successful in going in the other direction. 
 The instance of that trend of which I was most recently reminded was Finland. I saw an item on ''Newsnight'', I think, about Finland's plan, in recent years, to reduce prison sentences significantly and to concentrate far more on rehabilitation, work, training and other things. It is said that the approach has been highly successful, with crime rates coming down considerably. Of course, it is not automatic that what happens in one country would happen in another, but we must be careful that we do not pass legislation that will both send confusing signals and result in many more people being sent to prison simply because magistrates reason, ''Oh well, this is the maximum tariff; we used to give a maximum sentence of six months, and we shall now give the maximum of a year.''

Dominic Grieve: I take the hon. Gentleman's point. Also, if custody plus is not in operation, sentences of seven, eight, nine, 10 and 11 months will inevitably be routinely imposed by magistrates. They, being unable to impose custody plus—which, as described by the Minister, is completely different in its function—will want to impose a sentence that is an increase on their current limit of six months, and to try to reflect what custody plus might do if it included both the custody and the community components. I fear a great crisis in the short term.

Simon Hughes: I agree. I do not think that the Bill will get through Parliament if the proposal is advanced without the bringing into operation of the custody plus regime. The two are inextricably linked with respect to sentencing. We shall return to the issue, but so that we may regroup and rally even more troops to the logical cause, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Humfrey Malins: I beg to move amendment No.614, in
clause 137, page 77, line 40, at end insert— 
 '(9) A magistrates' court, if satisfied that failure to pay a fine or part thereof is due to wilful refusal or culpable neglect, may pass a custodial sentence of up to 12 months on a fine defaulter.'.
 This is a serious and significant amendment. I hope that the Minister will use the opportunity to deal with the issue raised earlier, regarding whether it will be possible to pass a sentence of one day, deemed served. I remind him that it is regularly used as a very quick way of disposing of matters. 
 The amendment deals with the thorny issue— 
 It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order. 
 Adjourned till this day at half-past Two o'clock.